|
Exhibit 10.18
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the " Agreement ") is
made and entered into this [__] day of [
], 2007, by and between Monotype Imaging Holdings Inc., a Delaware
corporation (the " Company ," which term shall include,
where appropriate, any Entity (as hereinafter defined) controlled
directly or indirectly by the Company and any successor to the
Company), and [
] (" Indemnitee ").
WHEREAS , it is essential to the Company that it be able
to retain and attract as directors and executive officers the most
capable persons available;
WHEREAS , increased corporate litigation has subjected
directors and executive officers to litigation risks and expenses,
and the limitations on the availability of directors and officers
liability insurance have made it increasingly difficult for the
Company to attract and retain such persons;
WHEREAS , the Company’s Certificate of
Incorporation provides for the indemnification of its directors and
permits it to make other indemnification arrangements and
agreements;
WHEREAS , the Company desires to provide Indemnitee with
specific contractual assurance of Indemnitee’s rights to full
indemnification against litigation risks and expenses (regardless,
among other things, of any amendment to or revocation of the
Company’s Certificate of Incorporation, any change in the
ownership of the Company or the composition of its Board of
Directors); and
WHEREAS , Indemnitee is relying upon the rights afforded
under this Agreement in accepting Indemnitee’s position as a
director or executive officer of the Company:
NOW, THEREFORE , in consideration of the promises and the
covenants contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
1. Definitions .
-
(a) " Corporate Status " describes the status of a person
who is serving or has served (i) as a director of the Company,
(ii) as an executive officer of the Company, (iii) in any
capacity with respect to any employee benefit plan of the Company,
or (iv) as a director, partner, trustee, officer, employee, or
agent of any other Entity at the request of the Company. For
purposes of subsection (iv) of this Section 1(a), a
director of the Company who is serving or has served as a director,
partner, trustee, officer, employee or agent of a Subsidiary shall
be deemed to be serving at the request of the Company.
(b) " Entity " shall mean any corporation, partnership,
limited liability company, joint venture, trust, foundation,
association, organization or other legal entity.
(c) " Expenses " shall mean all reasonable
fees, costs and expenses incurred in connection with any Proceeding
(as defined below), including, without limitation, reasonable
attorneys’ fees, disbursements and retainers (including,
without limitation, any such fees, disbursements and retainers
incurred by Indemnitee pursuant to Sections 9 and 11(c) of
this Agreement), fines, excise taxes assessed with respect to any
employee benefit plan, fees and disbursements of expert witnesses,
private investigators and professional advisors (including, without
limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services, and other
disbursements and expenses.
(d) " Liabilities " shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts
paid in settlement.
(e) " Proceeding " shall mean any threatened, pending or
completed claim, action, suit, arbitration, alternate dispute
resolution process, investigation, administrative hearing, appeal,
or any other proceeding, whether civil, criminal, administrative,
arbitrative or investigative, whether formal or informal, including
a proceeding initiated by Indemnitee pursuant to Section 11 of
this Agreement to enforce Indemnitee’s rights hereunder.
(f) " Subsidiary " shall mean any corporation,
partnership, limited liability company, joint venture, trust or
other Entity of which the Company owns (either directly or through
or together with another Subsidiary of the Company) either
(i) a general partner, managing member or other similar
interest or (ii) (A) 50% or more of the voting power of
the voting capital equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity, or (B) 50% or more of the outstanding voting capital
stock or other voting equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity.
2. Services of Indemnitee . In
consideration of the Company’s covenants and commitments
hereunder, Indemnitee agrees to serve or continue to serve as a
director or executive officer of the Company. However, this
Agreement shall not impose any obligation on Indemnitee or the
Company to continue Indemnitee’s service to the Company
beyond any period otherwise required by law or by other agreements
or commitments of the parties, if any.
3. Agreement to Indemnify . The Company
agrees to indemnify Indemnitee as follows:
-
(a) Subject to the exceptions contained in Section 4(a)
below, if Indemnitee was or is a party or is threatened to be made
a party to any Proceeding (other than an action by or in the right
of the Company) by reason of Indemnitee’s Corporate Status,
Indemnitee shall, to the extent permitted by applicable law, be
indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as " Indemnifiable
2
-
Expenses " and " Indemnifiable
Liabilities ," respectively, and collectively as " Indemnifiable
Amounts ").
(b) To the extent permitted by applicable law and subject to the
exceptions contained in Section 4(b) below, if Indemnitee was
or is a party or is threatened to be made a party to any Proceeding
by or in the right of the Company to procure a judgment in its
favor by reason of Indemnitee’s Corporate Status, Indemnitee
shall be indemnified by the Company against all Indemnifiable
Expenses.
4. Exceptions to Indemnification .
Indemnitee shall be entitled to the indemnification provided in
Sections 3(a) and 3(b) above in all circumstances other than
the following:
-
(a) If indemnification is requested under Section 3(a) and
it has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the Proceeding
out of which the claim for indemnification has arisen, Indemnitee
failed to act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company, or with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b)
and:
-
-
(i) it has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the Proceeding
out of which the claim for indemnification has arisen, Indemnitee
failed to act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder; or
(ii) it has been adjudicated finally by a court of competent
jurisdiction that Indemnitee is liable to the Company with respect
to any claim, issue or matter involved in the Proceeding out of
which the claim for indemnification has arisen, including, without
limitation, a claim that Indemnitee received an improper personal
benefit, no Indemnifiable Expenses shall be paid with respect to
such claim, issue or matter unless the court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Indemnifiable Expenses which such
court shall deem proper.
5. Procedure for Payment of Indemnifiable
Amounts . Indemnitee shall submit to the Company a written
request specifying the Indemnifiable Amounts for which Indemnitee
seeks payment under Section 3 of this Agreement and the basis
for the claim. The Company shall pay such Indemnifiable Amounts to
Indemnitee within thirty (30) calendar days of receipt of the
request. At the request of the Company,
3
Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary
to establish that Indemnitee is entitled to indemnification
hereunder.
6. Indemnification for Expenses of a
Witness . Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a witness in any Proceeding to
which Indemnitee is not a party, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
by the Indemnitee or on his or her behalf in connection
therewith
7. Indemnification for Expenses of a Party Who is
Wholly or Partly Successful . Notwithstanding any other
provision of this Agreement, and without limiting any such
provision, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be
indemnified against all Expenses reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less
than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with
each successfully resolved claim, issue or matter. For purposes of
this Agreement, and, without limiting the generality of the
foregoing, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a su
|
